Citation Nr: 0328669
Decision Date: 10/23/03 Archive Date: 11/03/03
DOCKET NO. 01-09 748A ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Pittsburgh,
Pennsylvania
THE ISSUE
Entitlement to an initial rating in excess of 20 percent for
diabetes mellitus.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
ATTORNEY FOR THE BOARD
M.N. Romero, Associate Counsel
INTRODUCTION
The veteran served on active duty from November 1966 to
August 1969.
This case comes before the Board of Veterans' Appeals (Board)
on appeal from an October 2001 rating decision issued by the
Department of Veterans Affairs (VA) Regional Office (RO) in
Pittsburgh, Pennsylvania.
REMAND
The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L.
No. 106-475, 114 Stat. 2096 (2000) [codified at 38 U.S.C.A.
§§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002)] and
the regulations implementing it are applicable to the
veteran's claim. The Act and the implementing regulations
provide that VA will assist a claimant in obtaining evidence
necessary to substantiate a claim, but is not required to
provide assistance to a claimant if there is no reasonable
possibility that such assistance would aid in substantiating
the claims. They also require VA to notify the claimant and
the claimant's representative, if any, of any information,
and any medical or lay evidence, not previously provided to
the Secretary that is necessary to substantiate the claims.
As part of the notice, VA is to specifically inform the
claimant and the claimant's representative, if any, of which
portion, if any, of the evidence is to be provided by the
claimant and which part, if any, VA will attempt to obtain on
behalf of the claimant.
Although the RO sent a letter to the veteran in April 2001
informing him of the evidence and information necessary to
substantiate his claim for service connection for diabetes
mellitus, it has not provided him with appropriate notice in
response to his claim for a higher initial rating for this
disability.
The Board further notes that in written argument submitted in
October 2003, the veteran's representative identified
additional pertinent treatment records, to include records of
treatment by Dr. Nolan from 2002 through the present, which
have not yet been associated with the veteran's claims file.
In light of these circumstances, the Board has concluded that
further RO actions are required. Accordingly, the case is
REMANDED to the RO for the following:
1. The RO should send the veteran a
letter providing the notice required
under 38 U.S.C.A. § 5103. It should
also inform him that any evidence and
information submitted in response to
the letter must be received by the RO
within one year of the date of the RO's
letter and that he should inform the RO
if he desires to waive the one-year
period for response.
2. The RO should take appropriate
steps to obtain all pertinent evidence
identified but not provided by the
veteran. The records obtained should
include all records pertaining to the
veteran's treatment by Dr. Nolan from
2002 through the present.
3. If the RO is unsuccessful in
obtaining any pertinent evidence
identified by the veteran, it should so
inform the veteran and his
representative and request them to
provide a copy of the outstanding
evidence.
4. Then, the RO should make
arrangements for the veteran to be
afforded a VA examination to determine
the current degree of severity of his
diabetes mellitus. The claims folder
must be made available to and be
reviewed by the examiner. The RO
should ensure that the completed
examination report contains all
information required for rating
purposes.
5. Then, the RO should undertake any
other indicated development and
readjudicate the issue on appeal. If
the benefit sought on appeal is not
granted to the veteran's satisfaction,
the RO should issue a supplemental
statement of the case to the veteran
and his representative and afford them
the requisite opportunity to respond
before the claims folder is returned to
the Board for further appellate
consideration.
By this remand, the Board intimates no opinion as to any
final outcome warranted. The veteran need take no action
until otherwise notified, but he may furnish additional
evidence and argument during the appropriate time frame. See
Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v.
Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet.
App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141
(1992).
This case must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West 2002) (Historical and Statutory
Notes). In addition, VBA's Adjudication Procedure Manual,
M21-1, Part IV, directs the ROs to provide expeditious
handling of all cases that have been remanded by the Board
and the Court. See M21-1, Part IV, paras. 8.43 and 38.02.
Shane A. Durkin
Veterans Law Judge
Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2002).